Citation Nr: 0619796
Decision Date: 07/07/06 Archive Date: 07/13/06
DOCKET NO. 04-32 682 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to a rating in excess of 50 percent for service-
connected generalized anxiety disorder.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
C. P. Shonk, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1948 to
November 1954.
This matter comes to the Board of Veterans' Appeals (Board)
from a February 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in San Juan,
Puerto Rico, which established a separate 20 percent
evaluation for duodenal ulcer disease, status post vagotomy
and pyloroplasty, and continued a 50 percent rating for
generalized anxiety disorder (both of the preceding service-
connected disabilities had had one rating for decades as
psychophysiologic gastrointestinal reaction manifested as
duodenal ulcer disease or anxiety neurosis with duodenal
ulcer disease).
FINDING OF FACT
The veteran's service-connected generalized anxiety disorder
has manifested without suicidal ideation; obsessional
rituals; intermittently illogical, obscure, or irrelevant
speech; near-continuous panic or depression; impaired impulse
control (such as unprovoked irritability with periods of
violence); spatial disorientation; and neglect of personal
appearance and hygiene.
CONCLUSION OF LAW
The criteria for entitlement to a rating in excess of 50
percent for the veteran's service-connected generalized
anxiety disorder have not been met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), are examined.
VA has a duty to indicate which portion of information should
be provided by the claimant, and which portion VA will try to
obtain on the claimant's behalf, which was effectively
accomplished in an August 2003 letter.
During the pendency of this appeal, the Court issued a
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; 3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability. The
Court held that upon receipt of an application for a claim of
service connection, 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id. at 484. In
this case, the August 2003 letter told the veteran of the
necessary requirement for an increased rating claim such that
evidence must show that his service-connected condition had
gotten worse. As such, the veteran was aware and effectively
notified of information and evidence needed to substantiate
and complete his claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).
It is also noted that a downstream element is not relevant to
the pending case, nor is there any downstream element issue
that is on appeal, and the veteran is not prejudiced by
consideration of the pending case.
The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
continued to recognize that typically a VCAA notice, as
required by 38 U.S.C.A. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim for VA benefits. In this
case, the veteran appropriately received sufficient VCAA
notification prior to the rating decision on appeal. See
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (holding that a
timing error can be cured when VA employs proper subsequent
process).
It is further noted that in order to be consistent with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice
must also request or tell the claimant to provide any
evidence in the claimant's possession that pertains to the
claim; this "fourth element" of the notice requirement
comes from the language of 38 C.F.R. § 3.159(b)(1). See
Pelegrini, 18 Vet. App. at 121. In this case, the principle
underlying the "fourth element" has been fulfilled by the
August 2003 letter when it stated: "If there is any other
evidence or information that you think will support your
claim, please let us know."
Next, VCAA requires VA to assist the claimant in obtaining
evidence necessary to substantiate a claim, 38 C.F.R.
§ 3.159(c), which includes providing a medical examination
when such is necessary to make a decision on the claim. In
this case, the record contains an August 2003 letter from a
private physician, and treatment records from the San Juan VA
Medical Center from 2001 to 2005. It is noted that upon
inquiry the Social Security Administration indicated that the
veteran had not filed for benefits, and thus no records were
found. The veteran was provided VA examinations in January
2004 and 2006, which are sufficient for a decision. See
38 C.F.R. § 3.159(c)(4). Further, the RO received statements
from the veteran in February and April 2006 that he had not
other information to provide VA.
Given the preceding, VA satisfied its duties to the veteran
given the circumstances of this case.
Analysis
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities. 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7. Any reasonable
doubt regarding the degree of disability is resolved in favor
of the veteran. 38 C.F.R. § 4.3.
The determination of whether an increased evaluation is
warranted is to be based on review of the entire evidence of
record and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These
regulations include, but are not limited to, 38 C.F.R. § 4.1,
which requires that each disability be viewed in relation to
its history. Additionally, where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, the present level of
disability is of primary importance. Francisco v. Brown, 7
Vet. App. 55, 58 (1994). Compare Fenderson v. West, 12 Vet.
App. 119, 125-26 (1999), which recognizes that at the time of
an initial award, separate ratings can be assigned for
separate periods of time based on the facts found, a practice
known as "staged" ratings.
When evaluating a mental disorder, VA shall consider the
frequency, severity, and duration of psychiatric symptoms,
the length of remissions, and the veteran's capacity for
adjustment during periods of remission. VA shall assign an
evaluation based on all the evidence of record that bears on
occupational and social impairment, rather than solely on the
examiner's assessment of the level of disability at the
moment of examination. 38 C.F.R. § 4.126(a).
Pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400, a 50
percent rating is warranted for generalized anxiety disorder
when there is occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent rating may be assigned when there is
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. Id.
A 100 percent rating may be assigned when there is total
occupational and social impairment, due to such symptoms as
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name. Id.
In compliance with 38 U.S.C.A. § 7104, and Gonzales v. West,
218 F.3d 1378, 1380-81 (Fed. Cir. 2000), a complete review of
the entire record indicates that a preponderance of the
evidence is against a claim for a rating in excess of 50
percent.
The record contains an August 2003 letter from Marcos Rosado
del Valle, M.D., which noted that the veteran had commenced
psychiatric treatment in 1954, and currently complained of
anxiety and depression. The letter noted that in 2002 the
veteran had undergone open-heart surgery, and in the hospital
suffered a cerebrovascular accident. Dr. Rosado offered a
diagnosis of schizophrenia, undifferentiated chronic type.
In a September 2003 statement, the veteran described several
incidents in the 1980s when he had become disoriented and
hostile due to his service-connected disability.
The veteran underwent a January 2004 VA examination, where he
reported hospitalizations in December 1987 and July 1999 for
major depression as well as a cerebrovascular accident (CVA)
in September 2002. The veteran currently received treatment
from Dr. Rosado, and took Xanax and Prozac. He reported that
his conditions were worse; particularly, he complained of
depression and memory problems after the CVA. The veteran
stated that he was unable to remember things and easily got
lost. The veteran spent a lot of time in bed, and frequently
got confused and disoriented.
A mental status assessment found that the veteran was clean,
adequately dressed, and groomed. He was alert and oriented
to person, place, day, and year. His mood was depressed and
anxious. The veteran's affect was blunted, and his attention
was fair-memory, however, was poor (the veteran was able to
recall three objects after two minutes with difficulty). His
speech was clear and coherent, he was not hallucinating, and
he was not suicidal or homicidal. The veteran's insight and
judgment were fair, and he exhibited good impulse control.
The examiner noted that the veteran had difficulty walking,
and suffered from frequent falls due to poor balance after
the CVA. The veteran had been depressed and suffered
sleeping problems. Diagnoses were Axis I, generalized
anxiety disorder with depression and cognitive defects, and
Axis V, Global Assessment of Functioning (GAF) 50.
In his March 2004 notice of disagreement, the veteran
asserted that his service-connected nervous condition made
him unable to keep a job, which met the requirement for a 100
percent schedular evaluation. In November 2004, the veteran
filed an application for increased compensation based on
unemployability, and asserted that he had last worked full-
time at the U.S. Postal Office in 1990 (also the date his
disability affected his full-time employment).
A November 2004 VA gastroenterology consult noted that the
veteran was oriented to person, place, and time. His mood
and affect was depressed and anxious.
A December 2004 rating decision denied entitlement to
individual unemployability. The veteran thereafter submitted
a January 2005 notice of disagreement, and though the RO
issued a September 2005 statement of the case, the veteran
did not perfect an appeal of the December 2004 determination.
Primary care VA treatment records from 2002 to 2005 generally
noted that the veteran had a problem with depressive
disorder, and was otherwise treated for the disability by Dr.
Rosado.
In January 2006, the veteran underwent a VA examination. The
veteran reported that he was married, and the father of three
children (one deceased in 1992). He described his
relationship with his wife as having been a complete
disaster. The veteran mainly got together with his relatives
because he did not drive anymore status post CVA. The
veteran reported no history of suicide attempts or
assaultiveness. He was not currently employed, and had
retired 18 years earlier due to eligibility by age or
duration of work. Current medications included anti-
depressant and anti-anxiety, and the veteran stated that he
was always nervous with a depressed mood precipitating crying
bouts on a daily basis in the afternoon. The veteran had a
clean general appearance, psychomotor retardation, and
impoverished speech. His affect and mood were constricted.
The examiner further observed that the veteran's attention
was intact, and was unable to do serial 7's. His orientation
was intact to person, time, and place. The veteran had a
paucity of ideas and poverty of thoughts. In terms of
judgement, the veteran understood the outcome of behavior.
The veteran had mild sleep impairment, which interfered with
daily activity. He had no hallucinations, inappropriate
behavior, obsessive/ritualistic behavior, or panic attacks.
The veteran had good impulse control, and no episodes of
violence or suicidal or homicidal thoughts. The veteran's
memory (remote, recent, and immediate) was normal.
The diagnosis was Axis I, generalized anxiety disorder, with
a comment that though the veteran referred to a diagnosis of
schizophrenia by the fee basis psychiatrist, the record
lacked symptoms or signs compatible with such a diagnosis,
and nor was it found in the medical record. Axis V was GAF
of 50. The examiner noted that there had been no changes in
functional status and quality of life since the last
examination.
From the preceding recordation of symptoms associated with
generalized anxiety disorder experienced by the veteran, it
appears that he does not have suicidal ideation or
obsessional rituals which interfere with routine activities.
Additionally, no medical evidence of record identifies that
his speech was intermittently illogical, obscure, or
irrelevant; rather, it appears that the veteran maintained an
ability to communicate clearly. Also, the veteran does not
apparently suffer from impaired impulse control, and
objective examination has failed to identify spatial
disorientation or neglect of personal appearance and hygiene.
Although the veteran is currently not working, which might
indicate that he had some difficulty in adapting to stressful
circumstances, he does not, however, have the inability to
establish and maintain relationships as evidenced by his
relationships with his relatives. Though he has expressed
that his relationship with his spouse has been very
difficult, a review of the record in relation to the pending
increased rating claims shows that the veteran also does not
exhibit the listed criteria for a 70 percent rating at this
time. Whatever memory problems the veteran may have been
experiencing at the January 2004 VA examination status post
CVA appeared to have significantly resolved by the January
2006 VA examination when his memory was noted as normal.
The veteran's generalized anxiety disorder symptoms have not
manifested, when compared with 38 C.F.R. § 4.130, Diagnostic
Code 9400, to the extent necessary for the next highest
rating of 70 percent. The Board is bound by the preceding
regulation generated by the legislative process, and at this
time, a preponderance of the evidence is against a claim for
an increased rating.
ORDER
A rating in excess of 50 percent for service-connected
generalized anxiety disorder is denied.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs